Wednesday, January 12, 2011

Teaching Students How to Read Cases

I once heard a story that Karl Llwellyn once proclaimed that he would or should read all judicial opinions of American courts issued in a single calendar year. I don't know if he ever actually tried doing this. Doing this would no longer be even imaginable today.

I think I also heard (from more than one source) that Karl Llewellyn devoted some or all of his class sessions to careful reading and discussion of every last detail of judicial opinions (and that he sometimes or often stormed out of the classroom when students weren't prepared or when he found their comments and arguments unsatisfactory).

I have been thinking about Karl Llewellyn because in recent years -- indeed, for many years -- I have been disturbed by how little law students (even very smart law students) seem attuned to the nuances of the judicial opinions they (supposedly) read.

So perhaps I should try to do something about this problem.

  • Perhaps I have the necessary qualifications to do something. I did practice law for a while. But I really learned how to read cases carefully when I worked for James H. Chadbourn while he was revising various Wigmore volumes and when I did my own revision of one of the Wigmore volumes.
  • In some academic quarters, reading judicial opinions is not fashionable. But it is a great mistake for ostensible law teachers to forget (or never learn) how to read cases. This is not only because law schools are expected to help prepare students for law practice. It is also because in real-world judicial opinions there are many (interesting & important) notions and arguments that cannot readily be converted into or captured by the preferred formal argument of the day.
  • Perhaps I can combine my plan to have students present and defend particular constitutional perspectives (relating to criminal procedure) with the objective of teaching students how to read and interpret full-bodied judicial opinions. I'll have to think about this. (I don't want to turn my criminal procedure course into an "elements of law" course.)


    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    Sunday, January 09, 2011

    Football Hearsay and Non-Hearsay

    Flip Bondy, Mark Sanchez, not offensive coordinator Brian Schottenheimer, called Jets big play in win over Colts New York Daily News (Jan. 9, 2010):
    [New York Jets quarterback]Sanchez didn't even have the stomach to watch [his team's] winning field goal. Instead he watched the reaction of the Colts, who didn't look too happy about the course of events. Only then Sanchez knew that one obstacle had been cleared, that he had graduated from an impossible matchup against Manning to another one against Tom Brady.
    This conduct was non-assertive conduct and thus non-hearsay under the Federal Rules of Evidence, correct?

    But question: Suppose the Colts had thrown up their hands, cheered, and jumped around. Would that have been non-assertive conduct or would it have been assertive -- "Hey, we won!" -- conduct?


    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    The Costs & Benefits of Getting a Law Degree

    See David Segal, Is Law School a Losing Game? NYTimes (Feb. 8, 2011).

    The article begins with the following eye-catching sentence:

    If there is ever a class in how to remain calm while trapped beneath $250,000 in loans, Michael Wallerstein ought to teach it.
    Another eye-catching passage:
    ...Mr. Wallerstein and a generation of J.D.’s face the grimmest job market in decades. Since 2008, some 15,000 attorney and legal-staff jobs at large firms have vanished, according to a Northwestern Law study. ...

    And with corporations scrutinizing their legal expenses as never before, more entry-level legal work is now outsourced to contract temporary employees, both in the United States and in countries like India. ...

    But improbably enough, law schools have concluded that life for newly minted grads is getting sweeter, at least by one crucial measure. In 1997, when U.S. News first published a statistic called “graduates known to be employed nine months after graduation,” law schools reported an average employment rate of 84 percent. In the most recent U.S. News rankings, 93 percent of grads were working — nearly a 10-point jump.

    In the Wonderland of these statistics, a remarkable number of law school grads are not just busy — they are raking it in. Many schools, even those that have failed to break into the U.S. News top 40, state that the median starting salary of graduates in the private sector is $160,000. That seems highly unlikely, given that Harvard and Yale, at the top of the pile, list the exact same figure.

    How do law schools depict a feast amid so much famine?

    “Enron-type accounting standards have become the norm,” says William Henderson of Indiana University, one of many exasperated law professors who are asking the American Bar Association to overhaul the way law schools assess themselves. “Every time I look at this data, I feel dirty.” It is an open secret, Professor Henderson and others say, that schools finesse survey information in dozens of ways.

    Question: Did anyone ever think that lawyers (or, for that matter, law teachers, law school deans, and university presidents) are as a group paragons of virtue?

    One of the things I have learned from the investigations conducted by the students in my Fact Investigation course:

    There is much hanky-panky afoot in the world of "non-profits."


    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.